Wanda Wright v. Palmentere Brothers Cartage Service

Improve: Wanda Wright

position to criticize the methods they utilized in arriving at their expert opinions. Further, we find that after finding employee permanently and totally disabled as a result of the primary injury alone, the ALJ's findings with respect to employee's alleged preexisting personality disorder and preexisting learning disability are misplaced and irrelevant. Once the ALJ made the determination that employee is permanently and totally disabled solely as a result of the primary injury, the analysis was complete and no further discussion regarding alleged preexisting conditions was necessary.

With respect to employee's request that the Commission clarify the date as to which her permanent total disability benefits shall commence, we find that they shall commence on March 26, 2008, the immediate day following the termination of her temporary total disability benefits.

We affirm the award of the ALJ as supplemented herein.

The award and decision of Administrative Law Judge Mark Siedlik, issued May 24, 2012, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the ALJ's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $9^{\text {th }}$ day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Ms. Wright: Wanda Wright

Injury No. 03-137716

Dependents: N/A

Employer: Palmentere Brothers Cartage Service

Insurer: Commerce \& Industry Insurance Co.

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Hearing Date: February 7, 2012

Checked by: MSS/pd

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of alleged accident or onset of occupational disease: December 2, 2003
5. State location where accident occurred or occupational disease was contracted: Franklin County, Ottawa, Kansas
6. Was above Ms. Wright in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of an in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work Ms. Wright was doing and how accident occurred or occupational disease contracted: Ms. Wright was involved in a motor vehicle accident while traveling as a passenger in Employer's tractor trailer.
12. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Back, neck, left lower extremity and emotional distress
2. Nature and extent of any permanent disability: Permanent total disability
3. Compensation paid to-date for temporary disability: $\ 47,695.10
4. Value necessary medical aid paid to date by employer/insurer: $\ 82,906.71.
5. Value necessary medical aid not furnished by employer/insurer: Ms. Wright offered the value of necessary aid not provided by Employer, including \2,333.00 to Scott Petrie, M.D., \ 4,800.00 to Rosenblum Clinic, $\ 3,800.00 to Greenbrier Hospital and prescriptions provided through CVS Pharmacy. Employer stipulated that related medical care and treatment not provided by Employer will be paid.
6. Ms. Wright's average weekly wages: $\ 592.13.
7. Weekly compensation rate: $\ 394.73.
8. Method of wages computation: Agreed upon wage.

1. Employer Liability:

130.71 weeks of temporary total disability @ 394.73 per week..........\$52,403.33 0 weeks of permanent total disability....................................................\$0 252 weeks of permanent partial disability @ \$347.05 per week..........\$87,456.60 Temporary total disability underpayment..................................\$ 3901.75

Permanent Total Disability Benefits weekly ................................\$ 394.73

1. Second Injury Fund Liability:

No Liability

TOTAL: To be determined

1. Future requirements awarded: Medical treatment.
2. The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Mr. Donald Taylor, Employee's attorney, for necessary legal services rendered.

Ms. Wright: Wanda Wright

Injury No. 03-137716

Dependents: N/A

Employer: Palmentere Brothers Cartage Service.

Insurer: Commerce \& Industry Insurance Co.

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Hearing Date: February 7, 2012 Checked by MSS/pd

On February 7, 2012, the Ms. Wright and employer appeared before the Honorable Mark Siedlik, Administrative Law Judge, to determine the nature and extent of Ms. Wright's disability and the liability of the Second Injury Fund. The Division has jurisdiction to hear this case pursuant to Mo. Rev. Stat. §287.110. The Ms. Wright appeared through his counsel, Don Taylor, the Employer/Insurance Carrier appeared through counsel, Eric Lanham. The Second Injury Fund appeared through counsel, Eric Lowe.

The parties stipulated that:

1. Employer and Ms. Wright were operating under an subject to the provisions of the Missouri Workers' Compensation law at all relevant times.
2. Venue is proper.
3. Employer's liability under said law was fully insured by Commerce \& Industry Insurance Company.
4. An employer/Ms. Wright relationship existed on or about December 2, 2003.
5. Ms. Wright sustained accidental injury on December 2, 2003.
6. Ms. Wright's injury arose out of an in the course of employment with Employer.
7. Ms. Wright provided timely notice of his accident as required by Missouri law.
8. A claim for compensation was filed within the time prescribed by law.
9. Ms. Wright's average weekly wage was $\ 592.13, resulting in a TTD rate of $\ 394.73 a PPD rate of $\ 347.05 and a PTD rate of $\ 394.73.

1. Temporary total disability benefits have been paid by the employer/insurer as a result of the December 2, 2003 injury in the amount of $\ 51,595.16. There is an underpayment of $\ 3,901.75;
2. Employer/insurer paid medical expenses in the amount of $\ 82,906.71.
3. Employer/insurer will be responsible for all medical bills incurred in connection with the treatment of Ms. Wright's injuries related to the December 2, 2003 accident. Employer will also pay for Ms. Wright's future medical care related to that injury.

The parties requested the Division determine:

I. The nature and extent of Ms. Wright's disability

II. Second Injury Fund liability

The Ms. Wright testified in person at the hearing. In addition, the following exhibits were offered and admitted into evidence:

1. Exhibit A: Photographs of accident.
2. Exhibit B: Wage information.
3. Exhibit C: Deposition of Dr. Keenan, report and curriculum vitae.
4. Exhibit D: Deposition of Michael Dreiling, report and curriculum vitae.
5. Exhibit E: Deposition of Dr. Lowry Jones, report and curriculum vitae.
6. Exhibit F: Medical records.

Ms. Wright is a fifty-one year old female who was hired as a truck driver by Palmentere Brothers Cartage Service in Kansas City, Missouri. On December 2, 2003, Ms. Wright was traveling as a passenger in a tractor trailer driven by a fellow Palmentere Brothers' driver. While in route from Kansas City to Dallas, Texas, the tractor trailer went off the road in Franklin County, Kansas, resulting in an accident and causing injuries to Ms. Wright. This matter has been litigated in the State of Kansas where the

Employee was determined to be permanently totally disabled as to the Employer/Insurer with medical treatment left open.

As a result of the accident, Ms. Wright sustained physical injuries to her back, neck and left lower extremity. Ms. Wright underwent two knee arthroscopies performed by Dr. MacMasters following the accident, including debridement and a partial resection of her meniscus. (Jones Depo, p. 6). In 2005, an anterior cruciate ligament reconstruction was performed on Ms. Wright's left knee. (Jones Depo, p. 6). Because Ms. Wright continued to suffer from significant pain, swelling and "popping out" of her left knee, Dr. Richard Robichaux ultimately performed a partial knee replacement on Ms. Wright in 2008. (Jones, Depo, pp. 6-7). Ms. Wright contends that the condition of her knee worsened following the partial knee replacement surgery and now gives out more frequently, causing her to fall. As a result of these falls Ms. Wright has sustained additional injuries.

In May 2010, Judge Hursh, ALJ in the Kansas proceedings, court ordered that an independent medical examination be performed by orthopedic surgeon Dr. Lowry Jones. (Jones Depo, pp. 4-5). According to Dr. Jones, at the time of his evaluation, Ms. Wright continued to complain of midthoracic/upper back pain, lower back pain, some pain into her buttocks and upper hips and pain in her knee. (Depo, pp. 7-8). Dr. Jones observed Ms. Wright's use of a cane, weakness in her leg muscles and abnormal gait. (Jones depo, p. 7). Dr. Jones reported that although Ms. Wright had no